WILLIAM B. OSGOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Osgood appeals his conviction for breaking and entering with intent to commit a misdemeanor, arguing trial court error in limiting cross-examination during evidence proffer and prosecutorial comment on his failure to testify. The appellate court found prosecutorial error in commenting on defendant's failure to testify and reversed for a new trial.
The trial court did not err in limiting cross-examination during the preliminary examination of evidence outside the jury's presence, as courts have authority to determine the limits of such examination. However, the prosecutor committed error by making comments on the failure of the appellant to testify when stating the jury heard no questions challenging the confession.
“We hold that the trial court is charged with the duty of determining the admissibility of the evidence and in doing so, may determine the limits of the preliminary examination preceding the reception of the evidence.”
Establishes that courts have authority to limit cross-examination during evidence proffer outside jury presence
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Join FLexlaw to unlock all legal intelligenceOsgood was charged with breaking and entering with intent to commit a misdemeanor. His automobile was searched with his consent, and a tire iron alleg…
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Appellant-Defendant below brings this appeal from judgment and sentence pursu*65ant to a jury verdict of guilty of the crime of breaking and entering with intent to commit a misdemeanor. This is a companion case with Mims v. State, Fla.App., 192 So.2d 62, which is being reversed for a new trial, and the facts are similar with the exception that in this case, the attorney for this Defendant was not permitted to cross examine a proffered witness out of the presence of the jury! Also, the Defendant’s automobile was searched with the consent of the Defendant, and a tire iron, which Defendant stated had been used in the breaking and entering was found.
Appellant claims error in limiting cross examination during proffer and in the absence of the jury.
The Court did permit counsel for Co-defendant Mims to cross examine and subsequently, in the presence of the jury, attorneys for both Defendánts were accorded the privilege of full cross examination. We hold that the trial court is charged with the duty of determining the admissibility of the evidence and in doing so, may determine the limits of the preliminary examination preceding the reception of the evidence. See Cochran v. State, 117 So.2d 544, 79 A.L.R.2d 638. We find no error in this respect.
As to the alleged error in the search, it appears that the Defendant had previously confessed to the' offense and- that his consent to the securing of the tire iron was adequate. .
The Prosecuting Attorney, in his argument to the jury stated:
“But he (referring to Police Detective Mein) told you right here, and it’s un-controverted before you right now, that these defendants told him right there at that time freely and voluntarily that they committed this crime. You didn’t hear any comments or any question to *' * you didn’t hear any question to Detective Mein as to whether he thought those defendants were lying when they made that statement.”
In the presentation before this Court, the State concedes that error was committed, and that this statement did amount to a comment on the failure of the Appellant to testify, and this Court does so find. Kolsky v. State, Fla.App., 182 So.2d 305; Singleton v. State, Fla.App., 183 So.2d 245.
Reversed and remanded for new trial.
LILES, Acting C. J., and HOBSON, J.,' concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mims v. State, 192 So. 2d 62 (Fla. 2d DCA 1966)…WILLIS, ROBERT E., Associate Judge. Appellant was charged with breaking and entering with intent to commit a misdemeanor, tried by jury and found guilty. The Appellant and William B. Osgood, Fla.App., 192 So. 2d 64 were arrested by the St. Petersburg police in an apartment, entrance to which is questioned, the charge was disorderly conduct and minor in possession of alcoholic beverage. The Defendant was taken to the city jail and subsequently arrested for brea…
Authorities Cited
- Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)
- Cochran v. State, 117 So. 2d 544 (Fla. 3d DCA 1960)
- Kolsky v. State, 182 So. 2d 305 (Fla. 2d DCA 1966)
- State v. Connelly, 192 So. 2d 62 (Fla. 2d DCA 1966)
- Mims v. State, 192 So. 2d 62 (Fla. 2d DCA 1966)